HKSAR v. Serjgavaa Munkh-od

HCMA 505/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 505 OF 2010

(ON APPEAL FROM KTCC 3120/2010)

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Before: Hon Mackintosh J in Court

Date of Hearing: 23 July 2010

Date of Judgment: 23 July 2010

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J U D G M E N T

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1.This is an appeal against the sentence imposed on 1 June 2010 by Mr Abu B bin Wahab, the acting Principal Magistrate in Kwun Tong Magistracy.

2.The appellant is a visitor to Hong Kong from Mongolia and she is aged 33.  She pleaded guilty to a theft offence, shoplifting, committed on 29 May 2010.  She was sentenced to 4 months’ imprisonment which had been discounted from 6 months’ imprisonment, that is to say, by one-third to reflect her plea of guilty.

3.The facts of the case which were admitted by the appellant at the Magistracy showed that she was observed at a shop called “Zara” in Telford Plaza in Ngau Tau Kok at a time when she was carrying a brown handbag.  She had left the “Zara” shop but no alarm had sounded as she left.  The security staff were suspicious and the appellant was stopped.  After she was stopped, the bag was searched, and inside the bag were found 10 items of clothing from “Zara”, all of which were bearing security tags.  The total value of those items was HK$5,271.  It was clear, because the security tags had not been removed, that the items had not been paid for, and had been stolen from “Zara” by the appellant.  More particularly, the inner layer of the bag that the appellant was carrying and which contained the stolen items was lined with aluminium foil.  The purpose of the aluminium foil was obviously to prevent the alarms being activated by the security tags; and that attempt to avoid the security had been successful.

4.This court is not unfamiliar with cases of aluminium foil being used to line bags in an attempt to stop security tags setting off the alarm.  Often it does not work; but in this case it seems to have done.

5.After she had been stopped, the appellant admitted that she had stolen the items in question and she subsequently pleaded guilty, as I have said.

6.The Magistrate, in sentencing the appellant, pointed out that this was not the case of petty theft, that is to say, small value theft; because the value of the goods in question was around HK$5,000 and the appellant had equipped herself in the manner that I have described.  So this could not be said to be an impulsive theft.  It must have been planned theft from the shop. That assessment by the Magistrate was entirely correct.

7.The appellant had no previous convictions in Hong Kong.  But as she is a visitor to Hong Kong this is a matter of little weight when it comes to the question of sentence.

8.Today, in support of her appeal, the appellant has given me a harrowing account of the difficulties faced by her 18 year-old daughter in Ulan Bator. The daughter, she told me, attempted to commit suicide following the desertion from the family of the appellant’s husband, the father of the girl.  The attempt was by jumping from a building which caused severe injuries which required treatment; and further treatment is due in the coming weeks and months.  It is an account from the appellant which deserves much sympathy, of course.

9.But in my judgment, those who equipped themselves with devices designed to circumvent the security measures taken by shops such as “Zara” – as was the case here with this modified bag, must expect to be sentenced to immediate terms of imprisonment.

10.Although the appellant put forward that account of her personal and family circumstances to which I had referred, the other circumstances of the case are such that I cannot conclude that the Magistrate was wrong in imposing a sentence of imprisonment in her case.  The term of imprisonment was discounted from 6 months as I have said already, to reflect the appellant’s plea of guilty.

11.There was no evidence in this case that the appellant was part of any gang.  If there had been, the sentence would have been much greater; but even for offenders working alone, a starting point of 6 months’ imprisonment for shop theft, planned as this was, and equipped as this was, where goods of substantial value was stolen, is a proper sentence, whether the offender is a visitor or a local person, although the Magistrate referred to the appellant abusing her privilege of stay in Hong Kong.  In such circumstances, starting point of 6 months’ imprisonment was proper.  Having taken such a starting point, the Magistrate gave a proper discount to reflect the plea of guilty and he reduced the sentence to 4 months.

12.There is no evidence that the account that the appellant has put before me today in relation to her family circumstances was put before the Magistrate; but even taking that account fully into account, it cannot allow me to reduce the sentence.

13.In all the circumstances of the case, the appeal against sentence must be dismissed.

Mr Thomas Law, Senior Assistant Director of Public Prosecutors, for the Respondent, HKSAR

The Appellant, in person